Frequently Asked Questions.
When choosing a family lawyer, there are five factors you should consider.
- Area of Expertise: Does your lawyer of choice specialize in family law or do they just “dabble” in it?
- Recommendations and reviews: What have their former clients said about working with them and their processes?
- Experience: It’s important to ask not only how long a lawyer has been practicing law generally, but how long has that lawyer been practicing family law specifically.
- Conflict resolution skills: Not all divorces got to court and family lawyers should be skilled in alternative dispute resolutions.
- Compatibility: Do you feel comfortable and confident with them? When choosing a family lawyer, trust your intuition.
Typically, in family law cases, lawyers charge by the hour according to a set hourly rate. Your lawyer’s hourly rate will vary depending on experience, expertise, and the region in which your lawyer practices.
It is also common for lawyers to charge set fees for certain tasks or aspects of a case. For example, a lawyer may charge a set fee for preparation of a Notice of Family Claim, drafting a Separation Agreement or preparing a Desk Order Divorce application.
Both parents of a child are automatically deemed guardians of that child while a child’s parents are living together and after the child’s parents separate. So, as long as you lived with your child prior to separation, you are your child’s guardian by default. Arrangements respecting the allocation of parental responsibilities, parenting time, and decision-making responsibility need to be worked out in the divorce.
Not all divorce cases end up going to court. Alternative Dispute Resolution (ADR) is a process of resolving legal disputes outside of court and includes processes such as mediation and arbitration.
A divorce is the termination of your legal marriage which takes place after the separation of married spouses. Only married people can get a divorce. However in BC, there really is no such thing as a “legal” separation. A Separation Agreement, on the other hand, is a formal agreement entered into by spouses who have already separated (or are contemplating separation) that sets out how various financial, property and parenting matters will be settled.
To apply for a divorce, the BC Supreme Court must have jurisdiction to grant you a divorce under the Divorce Act. Once this is completed, you must show there is a ‘breakdown in marriage’.
A breakdown of the marriage is established when of one of the following factors can be demonstrated:
- The spouses have been separated for at least one year
- One spouse committed adultery
- One spouse treated the other with physical or mental cruelty such that continuing to live together would be intolerable
The Family Law Act of BC is our provincial legislation that creates and sets out family law in British Columbia and is applicable to both married and unmarried spouses in BC. The Divorce Act is federal legislation and applies to every province in Canada. The Divorce Act only applies to married spouses who are separating and does not assist couples who live together. The Divorce Act is the only authority under which a court can grant a divorce in Canada.
Under the Divorce Act, the definition of spouse is simply, “either of two persons who are married to each other.”
Under the Family Law Act, you are a spouse if you meet one of the following definitions:
- You are or were married
- You lived together in a marriage-like relationship for at least two years
- Except for the purposes of dividing property or pensions, you lived together in a marriage-like relationship for less than two years, but you and your spouse have a child together
Mediation is the process by which a neutral third party (the mediator) facilitates settlement discussions between two people in a dispute to help them resolve their legal issues. Mediation is a private, voluntary and confidential process that helps resolve disputes out of court.
The time it takes a couple to reach a settlement on their legal issues can vary. Complex financial matters such as working out the details of a family business or escalated conflict related to children, may necessitate numerous mediation sessions. However, for the most part, a settlement can be reached at mediation over the course of 2 to 5 mediation sessions, with each session typically taking 1.5 to 3 hours.
In advance of mediation, the mediator will meet with both you and your spouse separately for a pre-mediation session. The purpose of pre-mediation is to put the parties at ease, and it allows the mediator to learn about the needs of each party. Also, the mediator will screen for family violence. Pre-mediation meetings provide the mediator with the information they need to assess whether mediation is the appropriate process for the parties.
At the end of a mediation, the mediator will develop a written record outlining the issues that have been settled. This written record helps to avoid confusion and misunderstanding between the parties about the final agreed upon settlement. This written record can take various forms.
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